I propose adopting a "presumption of liberty" by which the burden is placed on Congress to establish that its laws are truly "necessary and proper"—what it used to debate but no longer.

Now thats an idea I could really get behind. This collection of posts on Volokh is perhaps the most vital conversation that I've seen about the nature of the Constitution in a long time, mostly because it seems for some reason to have broken from the partisan arguements that often follow from policy objectives.

We used to have a limited government and a conservative judiciary. In the 30's the power of the legislature was vastly expanded because people expected the government to solve social problems. The power of the judiciary expanded in reaction to that.

In theory it is that case that conservatives want a limited government and liberals want an expansive one. You'd think conservatives could really get behind the idea in the above passage. However, in practice conservatives mean limited only in a fiscal sense and not really with regard to liberty. So they've been arguing that the judicial branch, which is the only present mechanism that actually limits the power of the government, stop doing that, so that the legislature can do whatever it wants, particularly with regard to cracking down on immoral behavior. This is supreme irony. It is also supremely ironic that support for a powerful judiciary is considered a liberal idea.

The next person who talks to me about judicial activism will get a response about legislative activism.

The idea of a limited government is something I could really get behind in a general sense, and you'd think in a general sense conservatives would be wonderful allies in that endevor, but in practice the Republicans seem much more interested in limiting a handful of things that I think really matter (like healthcare) and not limiting the plethora of pork and useless over-regulation that I'm not interested in, and I think they're unlikely to swallow the pill of individual liberty that would be required by legislative analyses about whether laws are "necessary and proper." I wish they were, but there is something to be said for reclaiming the words "limited government," which neither party is really interested in.

The Volokh Conspiracy - On 'legislating from the bench'